Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in the context of an Open Records appeal, and the Attorney General being sufficiently advised, this office finds that the Letcher County Division of Probation and Parole did not violate the Kentucky Open Records Act in denying Donald Ray Hall's written request for Probation and Parole records on the basis of KRS 439.510. Mr. Hall's request, dated September 3, 2009, read as follows:
Pursuant to KRS ch. 61 I am requesting one (1) each of the following documents: A copy of the letter sent to Kentucky State Reformatory, LaGrange, Kentucky, by Terrence Ison on or about 8/09/09, in reference to a letter written by inmate Donald Ray Hall # 153862 to his son Casey Ray Hall: I also want a copy of the letter or e-mail authorizing Mr. Ison to send that letter: A copy of any letter or E-mails from Commonwealth Attorney Edison G. Banks 11 [ sic ] in relation to the before said letter.
For clarification, Mr. Hall attached a copy of a disciplinary report containing findings against him that included the following:
...Lt. Terrell stated that he received a letter from Probation and Parole Officer Terrence Ison for the Office of the Commonwealth's Attorney 47th District. Attached to Officer Ison letter was a copy of a letter written by Inmate Donald Hall 153862 to his son. ...I/M Hall's son was one of the victims in Inmate Hall's crimes. [C]orrespond[e]nce with a victim is a violation of CPP 16.2, Section H, Item 9.
Officer Terrence Ison responded to Mr. Hall on September 18, 2009: 1
Please be advised that the two documents located in response to your request are privileged because the documents were obtained during the course of my job duties as a Probation and Parole Officer. This exemption is pursuant to KRS 61.878(1)(l) and KRS 439.510. As well, there are no e-mails from the Letcher County Commonwealth's Attorney's Office. Also, there are no supervisory authorization letters or e-mails to me in the file.
Mr. Hall initiated this appeal on September 29, 2009. He claims in essence that because Officer Ison received no specific written authorization to inform the Kentucky State Reformatory (KSR) about Mr. Hall's unauthorized correspondence with one of his victims, the letter Ison sent to the KSR was therefore "not in the course of his job duties" and thus not protected from disclosure by KRS 439.510.
In the agency's response on October 8, 2009, Justice and Public Safety Cabinet Staff Attorney Stafford Easterling clarified that the two documents in question were Mr. Hall's letter to his son (which the Commonwealth's Attorney forwarded to Officer Ison after it was anonymously left at his office) and Officer Ison's letter informing the KSR of Mr. Hall's correspondence. It is our opinion that both of these documents represent "information obtained in the discharge of official duty by [a] probation or parole officer" and are therefore privileged under KRS 439.510, as incorporated into the Open Records Act by KRS 61.878(1)(l). We believe the analysis contained in 01-ORD-120 and 05-ORD-265 (copies attached) is controlling on the facts presented and adopt these prior decisions as the basis of our determination herein. 2 See also OAG 88-14, p. 3 ("documents prepared and submitted by a parole officer" are "specifically excluded from public inspection" by KRS 439.510 ).
With regard to the absence of any correspondence to Officer Ison from the Commonwealth's Attorney or any written "supervisory authorization [s]," a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not the Attorney General's duty to investigate in order to locate documents which the public agency states it does not possess.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. Although there may be occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by explaining why the agency does not possess the record, we do not believe that this appeal warrants additional inquiries. "[I]t is not, in general, within our statutory charge to resolve questions of fact or ? otherwise [to] act as a trier of fact." 09-ORD-170, p. 4. In this case, since Mr. Hall has produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as he has requested, we do not have a sufficient basis on which to dispute the agency's representation that no such records exist. 3 Cf. Bowling v. Lexington-Fayette Urban County Gov't, 172 S.W.2d 333, 341 n.4 (Ky. 2005) (complaining party has the burden of production in litigation over the existence of a public record). Accordingly, we find that the Letcher County Division of Probation and Parole did not violate the Open Records Act in its disposition of Mr. Hall's request.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Donald Ray Hall, # 153862Officer Terrence IsonStafford Easterling, Esq.
Footnotes
Footnotes
1 The record does not disclose when Mr. Hall's request reached Officer Ison. Due to the uncertainties of prison mail, we cannot determine whether the response was timely. Mr. Hall was confined in the Kentucky State Reformatory in LaGrange, writing to an office in Whitesburg.
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2 Even if Mr. Hall were correct that Officer Ison needed to have specific written authorization from superiors for every piece of correspondence he wrote, that would not affect our analysis under KRS 439.510, since that statute speaks in terms of "information obtained, " not of "documents generated," in the discharge of official duty. Mr. Hall's letter was received by Officer Ison in the course of discharging his official duties, and accordingly so was the information it represented.
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3 Mr. Hall contends in subsequent correspondence dated October 28, 2009, that it is not credible that the Commonwealth's Attorney would have forwarded Mr. Hall's letter to Officer Ison without a cover letter. We believe it is entirely possible that a phone call would have served the same purpose as a cover letter.
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